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DANIELL'S CHANCERY PRACTICE.
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1 By EDMUND ROBERT DANIELL, F.R.S. Second Edition, 1 Esq., M.A., Recorder of Chester. Containing the Lives of Sir Matthew with several New Chapters, and considerable alterations and additions ; | Hale, Lord Keeper Whitelocke, Lord Nottingham, Sir John Holt. Lord adapting the Text to the last General Orders of May, 1845, and the De- | Cowper, Lord Harcourt, Lord Macclesfield, Lord King, Lord Talbot cisions of the Court up to the time of publication. By T. E. HEAD- Lord Hardwicke, Sir William Blackstone, Lord Bathurst, Lord Mans LAM, Esq., of the Inner Temple, Barrister at Law.
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No. 501_VOL. X.
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LONDON, AUGUST 15, 1846. are in any way concerned in preparing them, we think
we may usefully give it a more prominent place in our The provisions of the 4 Geo. 2, c. 28, concerning pages than it occupies in the columns of reports. There actions of ejectment by landlords against their tenants, may be some of our readers by whom a common-law case, are familiar to our readers. By that statute consider-though relating to their own more peculiar branch of the able facilities were afforded to landlords, and the diffi- law, would escape being noticed. In Doe d. Darke v. ealties created by the formalities which the common Bowditch, an action of ejectment had been brought under law required to be observed in enforcing rights of re- the provisions of the statute we have referred to. The entry were removed. By the 2nd section in particular clauses in the lease were very inartificially drawn, but it was enacted, “ That, in all cases between landlord the reasonable construction, and that which was put and tenant, as often as it shall happen that one half- upon them by the court, was, that, upon non-payment year's rent shall be in arrear, and the landlord or lessor of the rent reserved, the lessor might enter and hold the to whom the same is due hath right by law to re-enter premises until the arrears were satisfied. Primâ facie, for the non-payment thereof, such landlord or lessor shall this would be within the terms of the statute, viz. a and may, without any formal demand or re-entry, right by law to re-enter for the non-payment of the derve a declaration in ejectment for the recovery of the rent. But, upon closer examination, various reasons demised premises; and in case of judgment against the suggest themselves for putting a limited construction casual ejector, or nonsuit for not confessing lease, entry, upon those words; and the Court of Queen's Bench and ouster, it shall be made appear to the court where have held, and apparently rightly, that the statute did the suit is depending by affidavit, or be proved upon the not apply to such a case. The precise words of the trial in case the defendant appears, that half-a-year's condition were, “ to enter on the premises for the same rent was due before the declaration was served, and until it be fully satisfied;". and the period for which that no sufficient distress was to be found on the de- the landlord was to be entitled to hold the premises mised premises, countervailing the arrears then due, was therefore limited to the time during which the and that the lessor or lessors in ejectment had, power arrears remained unpaid. But, by the statute, uptor-enter, then, and in every such case, the lessor or less the tenant pays the arrear of rent within six lessors in ejectment shall recover judgment and execu months, the lease is to be absolutely forfeited, which tion, in the same manner as if the rent in arrear had was not intended by the parties, nor is within the been legally demanded, and a re-entry made."
| terms of the condition. It was upon this ground that The reader will observe, that, by the terms of the the court made their decision. “The object,” says above section, its provisions are to be applicable to that portion of the judgment, “ of the 2nd section of cases where the landlord hath right by law to re-enter the 4 Geo. 2, c. 28, appears, by the preamble, to have for the non-payment of the rent. In our last number a been, to remove the inconvenience to landlorda in! case is reported, which shews what is the meaning to the niceties attending re-entries at com . be attached to these words, and, as the decision has an from the obtaining injunctions in equival important bearing upon the provisions usually inserted vides, that, where half-8-year's rent .. in leases, and ought to be well known to those who ' landlord has a right to re-enter for no VOL. X.
service of a declaration in ejectment, in the manner like effect, then the profits shall be accounted no part of pointed out by the statute, shall stand in the place of a the satisfaction, but to hasten the lessee to pay it, and. demand and re-entry; and if the tenant appears, and as Littleton saith, that, until he be satisfied, he shall it is proved that half-a-year's rent was due, and no take the profits to his own use. (Co. Litt. 203. a.) It sufficient distress upon the premises when the declara- is said, however, that the feoffor or lessor gaineth no tion was served, and that the landlord had power to estate of freehold, but only an interest by the agreere-enter, then the landlord shall recover judgment and ment of the parties to take the profits in nature of a execution in the same manner as if there had been a distress. We see, therefore, that, long before the 4 Geo. demand and re-entry. If the statute had stopped there, 2, c. 28, there was a wide distinction between a general the plaintiff in the present case might have been en condition, that a lessor should re-enter upon the demised titled to avail himself of it, assuming that half-a-year's premises, and a special condition, that he should enter rent was due, and that there was no sufficient distress and hold until payment or satisfaction of the arrears of upon the premises, as he had a right to re-enter upon rent. At the time that act was passed, the Legislature non-payment of rent, and the only effect of the statute most probably intended, that where a landlord had to would have been to relieve the plaintiff from the com- bring an action of ejectment, whether in pursuance of mon-law formalities of the demand and formal re- a general or a special condition, he should be released entry, and he would have recovered possession of the from the formalities imposed by the common law. It premises, to hold until the arrear of rent was satisfied, now turns out, however, that the statute has been so when the lessee would be entitled to re-enter under his framed as to exclude the latter case; and in preparing lease.
leases, therefore, care must be taken in future to adopt “ The statute, however, goes on, in the same section, the general condition creating an absolute forfeiture of to say, “that, in case the lessee shall permit or suffer the lease, and not the special and more equitable condijudgment to be recovered on such ejectment, and exe- tion, that the lease shall be quasi forfeited, so long only cution to be executed thereon, without paying the rent as the rent remains unpaid. "The decision appears to us and arrears, together with full costs, and without filing to be of much practical importance, and one which, a
we said before, called for an especial notice. any bill for relief in equity within six calendar months after such execution executed, then the lessee shall be barred and foreclosed from all relief or remedy in law
Correspondence. or equity, other than by writ of error for reversal of the judgment, in case the same shall be erroneous, and
TO THE EDITOR OF “THE JURIST." the landlord shall from thenceforth hold the premises Sir,--It is very much to be regretted that TAR JURIST discharged from the lease.'
should indulge in such rambling and declamatory abuse
of conveyancers, as is contained in the number of the “ The latter part of the 2nd section applies to the list.
1st August. The manner in which the qualifications whole; and, if the right to re-enter in the present case of the conveyancer, his functions, and his motives, are is within the meaning of the statute, the effect would there depicted, I must be excused for characterising as be, that, unless the tenant paid the arrear of rent within very unbecoming and improper. Nor is it the first six months, the lease would be absolutely forfeited. ( time only that the same pen (for I think the article though the condition is merely that the landlord shall
may safely be attributed to the writer of previous papers
on Conveyancing Reform) has been engaged in traducing enter and hold until the arrears are paid, and the stat
and holding up to ridicule this most useful and honouraute would enlarge the terms of the condition, and create ble portion of the Bar. It behoves, I think, a journal a forfeiture where none was intended by the parties. such as yours to evince somewhat more of respect and deWe are of opinion that the statute was not intended so ference for a body of gentlemen, inferior to none in the to operate, but that its application is to those cases only
profession for honour, independence, integrity, and ta
lent. Wholesale imputations of motives, such as those where the right to re-enter is absolute, and not, as in
made against the conveyancing Bar, prove nothing but this case, quo usque; and the lease upon such re-entry I the unfitness of the writer to discuss the subject at all, is forfeited.”
and the worthlessness of any theory based upon such But, although not within the statute, the landlord insinuations. I always understood that THE JURIST might, in the case we have been considering, bring an was a journal representing the Profession of the Law, ejectment at common law. In Co. Litt. 202. b., the
whereas, if one were to go over the numbers of that pecase is put. (Litt. S. 327).
riodical for two years past, it would appear difficult to
The feoffor or lessor may I find any obiect more predominant than the issue os enter and hold the land, and take the profits, until the sneers. diatribes, and invectives against those upon rent is satisfied, with the distinction, important at com- whom devolves the practical administration of our enmon law, and, therefore, necessary to be remembered in tire system of property jurisprudence. A large body case the lessee has to bring ejectment to recover back of men, educated, respectable, and talented, are not the land, but not admitted in equity, that where the 80
the generally found to be so thoroughly wrong and depraved
as the writer of the review would have your readers to condition is, that, if the rent be behind, the lessor believe with respect to the conveyancers. In their shall re-enter and take the profits until thereof he be name I pronounce the attack of that opinionated person satisfied, there the profits shall be accounted as parcel to be in bad taste, to be founded in ignorance and conof the satisfaction, and, during the time that he so ceit, to be untrue, unjust, and utterly discreditable. taketh the profits, he shall not have an action of debt! I am quite willing to believe that the insertion of
such articles in your journal is by inadvertence merely, for the rent, for the satisfaction whereof he taketh
| but the fact that this is a repetition of former sallies of the profits. But if the condition be that he shall take a similar kind forbad any further silence on the part of, the profits until the feoffor or lessor be satisfied or
Sir, your obedient servant, paid of the rent, without saying “thereof,” or to the
A BARRISTER IN EXTENSIVE PRACTICE.
Our correspondent is not the only member of the is not the direct course of the conveyancer perpeprofession whom it has been our misfortune to offend tually thwarted by judicial currents, eddies, quickin the course of our observations on the state of convey- sands, rocks,-styled anomalies, exceptions, departures ancing practice. He entirely misunderstands us, and from principle ? Was not Sophistry guilty of Dumwastes his indignation on an imaginary offence. We por's case, and the exclusion of the half-blood from inhave not made any attack upon the conveyancers; heritance,-Pedantry of Lord Lincoln's case, and the but, since their friends are anxious not merely to excul- rule as to releases in Litt. s. 222,-Ignorance of Doe v. pate, but to exalt and glorify that respectable body of Hilder, and the hopeless perplexities of the learning as lawyers, we shall take occasion, while replying to our to the raising of uses within the Statute of Uses, correspondent's charge, to consider what are the claims Error of Toulmin v. Steer, (3 Meriv. 216),--and Expeof conveyancers on the gratitude and esteem of society diency of Taltarum's case ?) “The absurdity of Lord at large.
Lincoln's case," said Lord Mansfield, “is shocking." As the offensive passages are fortunately not long, (Doug. 722). The settled rule for construing gifts over We reprint them:
on failure of issue was pronounced by a Lord Chief “It is to conveyancers that we chiefly owe the ab- Justice (Wilmot) to be “a monstrous absurdity," "a surdities and abuses of the existing system, and it is on shameful abuse of language," “ the most intolerable conveyancers alone that the discredit, such as it is, of tyranny, the grossest barbarism,” &c. (Keeley v. Fowthe recent abortive attempts at reform must rest." ler, Wilm. 408). That conveyancers must govern their
“The truth is, that the successful amendment of any practice by such rules is their misfortune, not their time-worn social machinery requires the co-operation fault. of many qualifications which are seldom united in the To endeavour to guard his client against the inconsame individual, and which, distributed among several, veniences which might flow from even the unfounded cannot easily be brought together and concentrated doubts of the ignorant or injudicious, is the conveywith effect upon a given object. And, though the con- ancer's duty; but the constant performance of such a veyancer is, or ought to be, the most shifty of the duty tends to deaden the discriminative faculty and children of the law, yet his professional habits are not damp the courage which are necessary to a reformer. well fitted for the training of an accomplished reformer. “ To consider private interest as paramount to public To recognise in a general principle only the fruitful convenience, and to abet his client in roasting his own parent of an infinite variety of deformed but powerful eggs in the embers of his neighbour's fire,may or and tyrannous dwarfs called 'exceptions and qualifica- may not be the duty of the conveyancer, in a moral tions, (the issue of a polygamous intercourse with point of view; but it certainly is not unfrequently his sophistry, pedantry, ignorance, error, and expediency); practice. What was the whole system of attendant to seek on all doubtful points, not the true rule, but a terms, to which conveyancers clung so fondly, but a course consistent, if possible, with the worse as well as large egg-roasting establishment of the kind described? the better opinion; to ask, at every turn, not Is How does Mr. Preston lay down the rule as to searchthis right?' but, 'What will the Profession, what will ing for prior claims?“When the purchaser can oban unlearned judge, or an ignorant or timid practi- tain a clear title to a legal estate anterior to the period tioner, or a captious purchaser, say to this? ever to at which he would otherwise search for judgments, consider private interest as paramount to public con- then, in practice, a search for judgments is not advised. venience; to abet his client in roasting his own eggs in The purchaser may rely on the legal estate, and the rule the embers of his neighbour's house; daily to read, of equity which protects purchasers for a valuable consicompose, write, and comment upon countless folios of deration, and without notice." (Abstracts, vol. 3, p. 339). the most barbarous, tautologous, and absurd jargon; “ The system [of protection from the legal estate] has in short, on every occasion systematically to eschewa tendency in some cases to promote fraud: it may enlarged and general views, and to bestow equal consi- enable a party who has made a settlement to defeat it deration on form and substance, custom and reason ; with greater facility. It appears, too, that, in some these are habits which must entirely disqualify any instances, it induces a system of selfish caution, with ordinary capacity for the successful development of a an indifference to the just claims of other persons, since solid and comprehensive scheme of reform. Whatever some respectable practitioners have avowed, that, when may be the cause, certain it is, that, at present, the law an outstanding term can be obtained, they advise their owes no great debt to the conveyancers on the score of clients to omit the usual inquiries by which the existamendment.”
ence of intermediate incumbrances might be discovered, Whether or not this be a diatribe, or rambling and and to rely upon the legal estate to defeat them.” declamatory in style, is a point of criticism which we (2nd Real Prop. Rep., p. 13). And the better to favour need not discuss. We think it is not invective, or this sort of double dealing, it was the approved practice abuse, and we are sure that it contains no imputation to keep the title to the inheritance altogether free of of motives. Its propriety and becomingness will de- any allusion to the “attendant," but very independent pend in some measure on its truth.
| term. That conveyancers were the framers of the recent sta Lastly, we have said that conveyancers are in the tutes relating to conveyancing, sufficiently appears in the habit of reading, composing, [compiling should have article referred to, that the absurdities and abuses of been the word], and commenting upon countless folios the existing system (i. e. the verbosity, complexity, [not countless, for every word is counted, for the beand length of conveyances, the reform of which was the nefit of the revenue] of the most barbarous, tautolosubject-matter of the article) might be removed by the gous, and absurd jargon. To put this assertion to a conveyancer, without any assistance from without, we severe test, let us take the commencement of a marriage have shewn in former articles, and we shall presently settlement given by a late celebrated conveyancer, as a briefly repeat the demonstration. That they are alone model of that kind of draftmanship. answerable for what, under the existing law, is super “Whereas a marriage is intended to be [shortly had Huous in conveyances, is an assertion which may pass and] solemnized between the said A. A. and C. B., and without any formal proof.
the said B. B. hath agreed to pay the sum of £ “To recognise in a general principle only the pa- unto the said A. A. as (and for] the marriage portion rent of an infinite variety of exceptions" is the fate of the said C. B., his daughter. Now this indenture not only of the conveyancer, but of the adept in every witnesseth, that, in consideration of the said intended other branch of the English law. Without referring marriage, and of (the sum of] £- [of lawful money to the statute-book, wherein Chaos rules supreme, of Great Britain] to the said A. A. [in hand] paid by -the said B. B., (at or before the sealing or delivery of barous, tautologous, and absurd jargon,” take from the these presents, the receipt and payment whereof he the same authority the following covenant in a partition said A. A. doth hereby acknowledge, and of and from deed, that A. B. and his heirs, &c., the same, and every part thereof, doth release and ac- “ Shall and will from time to time, &c., upon every quit the said B.B., his heirs, executors, administrators, reasonable request, and at the proper costs and charges and assigns, and every of them, for ever, by these pre- of the said J. F., his heirs or cestuis que use, or any of sents, and for making such provision and settlement for them, make, do, and execute, or cause or procure to be and upon the said C. B., and the issue of the said in- made, done, and executed, all such further and other tended marriage as hereinafter mentioned, and for set- lawful and reasonable acts, deeds, devices, conveyances, tling and assuring the hereditaments hereinafter granted and assurances in the law whatsoever, for the further, and released, or intended so to be, with the appurten- better, and more perfectly and absolutely granting, ances, to the uses, upon the trusts, for the intents and conveying, and assuring the same messuages and other purposes, and under and subject to the powers, provi- hereditaments, with the appurtenances, to the uses soes, declarations, limitations, and agreements herein- hereinbefore limited concerning the same, as by the after limited, expressed, and declared of and concerning said J. F., his heirs or cestuis que use, or any of them, the same; and for and in consideration of the sum of or their or any of their counsel in the law, shall be reafive shillings of like money to the said A. A. in hand sonably advised, or devised and required,” &c. paid by the said C. C. and C. E. at or before the seal. A. B. “ shall” and his heirs “ will”—“ cestuis que ing and delivery of these presents, (the receipt whereof use"_“any of their counsel,” (meaning the counsel of is hereby acknowledged), he], the said A. A. Chath any of them), will suffice for barbarism. With tautogranted, bargained, sold, released, and confirmed, and logy the whole covenant is turgid; but, “ will, upon by these presents] doth [grant, bargain, sell7 release every reasonable request, do such reasonable acts as [and confirm] unto the said C. C. and C. E., (in their shall be reasonably required;" “lawful acts in the actual possession now being, by virtue of a bargain and law," &c., shew, that when synonyms fail, reiteration sale to them thereof made by the said A. A., in consi- | must be tried. Absurdity is stamped upon the whole deration of five shillings, by indenture bearing date the by the words “or procure to be made," &c., which day next before the day of the date hereof, for the term make the covenantor engage not only that himself and of one whole year, commencing from the day next those claiming under him will execute further asbefore the day of the date of the same indenture of bar- surances, but that they will procure to be made all such gain and sale, and by force of the statute made for trans further assurances as the purchaser shall require, and ferring uses into possession] and [to] their heirs, all render the covenant, which was intended to be qualified, &c., and all [houses, outhouses, edifices, buildings, absolute. And these are the faults, not of a hasty barns, dove-houses, stables, yards, gardens, orchards, sketch, but of common forms, which, during half a lights, easements, ways, waters, watercourses, commons, century, have been subjected to the daily scrutiny of an commodities, privileges, emoluments, advantages, here- educated and liberal profession. ditaments, and] appurtenances (whatsoever to the Our former article contained no attack upon the said [messuages or tenements, lands and] hereditaments, character of the conveyancers, but merely a description [belonging or in anywise appertaining, or accepted, re- of their occupation. We now charge them, not with puted, taken, or known as part, parcel, or member motives, but with the fact, that they have invented this thereof, and the reversion and reversions, remainder and insufferable conveyancing language, and have perseremainders, and yearly and other rents, issues, and pro- | vered in the use of it, in spite of remonstrance and rifits of all and singular the premises], and all the [estate, dicule, until they have driven the laity to seek relief right, title] interest therein (trust, property, claim and against their own “ counsel” at the hands of the Legisdemand whatsoever] of shim] the said A. A., [of, in, lature. If this charge is unjust, it may be met in a to, or out of the said messuages, lands, tenements, here- / better way than by calling names. ditaments, and premises, and every of them, and every Need we add, that, in endeavouring to bring under part and parcel of them, and every of them. To have discussion what we regard as grave defects in the pracand] to hold the said (messuages or tenements, lands7 tice of conveyancers, our object is to serve, and not to hereditaments (and other the premises hereby granted damage them to make their practice more rational and released, or intended so to be, with their and every and useful, and therefore more agreeable, and more reof their rights, members, and appurtenances) unto the spectable and honourable. Commerce in land has vastly said C. C. and C. E., and their heirs (for ever; never-increased of late, and is rapidly increasing, and with theless to the uses, upon the trusts, for the intents and this increase has arisen a demand for amendment of the purposes, and under and subject to the powers, provi- system of transfer, which will be satisfied. If the leadsoes, limitations, declarations, and agreements herein- | ing conveyancers lend their aid to work out the details after limited, expressed, and declared of and concerning of those general schemes of reform which they cannot the same, that is to say,] To the use &c.” (2 Sand. be expected to originate, they will secure to their order Uses, 4th ed., p. 148).
the praise of being something more than merely “eduThe reading of a marriage settlement has been com- cated, respectable, and talented;" but, if these "angels" pared to a sojourn in the cave of Trophonius; but we of the law decline to tread the field of innovation, they defy even those who have just undergone the discipline will have to look on and weep, while “ fools" rush in, to argue that the words we have inclosed within brackets and do the work in a very different fashion. are of any earthly use, and keep their gravity.
By casting the draft into a different form, it might be still further shortened; thus
MEMBERS RETURNED TO SERVE IN PARLIAMENT. — “This indenture, made &c., witnesseth, that, in con- | Daniel O'Connell, jun., Esq., for the borough of Dunsideration of a marriage intended between the said A. dalk, in the room of Thomas Nicholas Redington, Esq., B. and C. B., and of the portion of paid by the who has accepted the office of Under Secretary to the said B. B. to the said A. B., the said A. A. grants unto Lord Lieutenant of Ireland: The Right Hon. Lord the said C. C. and C. E., and their heirs, ali &c., with Robert Grosvenor, Treasurer of her Majesty's Housetheir actual and reputed appurtenants, and all the in- hold, re-elected for the city of Chester; Benjamin terest of the said A. A. therein; to hold the said here- Bond Cabbell, Esq., for the borough of St. Alban's, in ditaments unto the said C. C. and C. E., and their the room of the Right Hon. William, Earl of Listowell, heirs. To the use," &c.
who has accepted the office of one of the Lords in WaitSo much for verbosity. As & specimen of "bar- | ing on her Majesty.